By Collin County Criminal Defense Lawyer Jeremy Rosenthal
(972) 369-0577
Governor Perry signed the Michael Morton Act into law on May 16, 2013. It’s intent is to broaden the amount and ease with which a criminal defendant is entitled to access information about a case. The law goes into effect on January 1, 2014.
You can read the specific changes made to Texas Code of Criminal Procedure 39.14 here.
“Open-File Policies”
Though the effects of new legislation are never known until the law is put into practice and courts have had a chance to wrestle with the issues — this new law mandates a de facto “open-file policy” for all District and County Attorney Offices across the state only a bit broader.
D.A.’s offices in Texas typically have their own individualized policies about how they share information with the accused. Many counties such as Dallas and Tarrant have had long-standing open-file policies meaning the Defendant had access to practically anything they requested from the prosecutors with certain exceptions. Collin County began to have it’s open-file policy in 2011.
Previous Open-File Policies Offered No Guarantees or Real Protections
Even with open-file policies, the state was/is never truly bound to share certain information under the lame duck version of 39.14 unless formally ordered to produce information by a Judge. Prosecutors frequently request Defendant waive certain rights in exchange for information about the case. For example, in exchange for a police-report a Defendant would have to waive the ability to complain to the court about certain unrelated types of information not turned over or about when information would be due to be turned over. Waiving rights is often a part of pleading guilty — but is difficult for those asserting their right to trial.
Open-file policies generally give Defendant’s no assurances as to when information would be disclosed. Understanding police and prosecutors are human too — they often learn new information the Friday before a Monday trial or even after the trial has started. The new information might not be given to the defense in time for meaningful use.
What the Michael Morton Act Changes
Easier Application Process: Previously a Defendant would have to petition the Court and show “good cause” in order to get a limited amount of information — and a police report actually wouldn’t have been one of the things a court would order to be given over under 39.14. Now a Defendant only needs to make a timely request directly to the prosecutor. The Defense no longer needs to apply to the Court to order disclosure and attempt to prove “good cause” — a maneuver which would typically engender resistance from prosecutors.
More Information: The Michael Morton Act requires production of offense reports, recorded statements, witness statements, and police statements. The act even appears to allow discovery of work product of prosecutors and their investigators that are not “otherwise privileged.”
Ease in Production: The bill allows for electronic discovery and duplication which typically eases the process for everyone.
Post Conviction Discovery: The bill imposes production of exculpatory or mitigating evidence to the Defense which is not a new requirement. What is new is required production of exculpatory or mitigating evidence even after a person is convicted. This would almost certainly assist a person in clearing their name even after being convicted.
What the Bill Means for Those Charged with Crimes
It depends on where the charges are being brought. As discussed above, many counties already had “open-file policies” which went a large way to alleviating many of the problems 39.14 previously presented. For counties previously with a closed-file policy this act presents a tremendous change.
The act alleviates the Defense from some of the leverage prosecutors had in they will no longer have to waive unrelated rights in exchange for basic information.
While the act re-codifies the State’s obligation to produce exculpatory or mitigating evidence (called Brady material), this area remains a struggle because Defense lawyers and prosecutors frequently disagree about what constitutes Brady material due to it’s subjective nature.
*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For legal advice about any situation you should contact an attorney directly.
Mr. Rosenthal,
Thanks for your website and for your post on this topic. A few hypothetical questions for you.
If a person believes that a prosecutor failed to turn over exculpatory information in a criminal case that resulted in conviction, could a person obtain that exculpatory information by way of a Public Records request? In your answer, you may assume the prosecutor in this case is theoretically a decent person and in another hypothetical, not a decent person.
If a person appeals their conviction today in 2014 for a crime committed in 2012, would the new discovery rules apply. Consider the possibility that a prosecutor in a theoretical case refused to provide their discovery file upon request to the prosecutor and to the judge in the case (as a motion).
The conclusion I am arriving at is that the Michael Morton Act has an extremely strong bit of irony baked in, namely, that since it isn’t retroactive to crimes committed before 1 Jan 2014, there are a whole host of other Michael Morton’s out there who won’t enjoy the benefits of the new discovery. Am I crazy or is that an irony of ironies?
I believe Texas should make all prosecutor files open to the public after a conviction subject to reasonable redactions as noted in the Public Records laws.
Your thoughts sir?
ftp://ftp.legis.state.tx.us/bills/83R/billtext/html/senate_bills/SB01600_SB01699/SB01611F.htm
SECTION 3. The change in law made by this Act applies to the
prosecution of an offense committed on or after the effective date of this Act. The prosecution of an offense committed before the
effective date of this Act is covered by the law in effect when the
offense was committed, and the former law is continued in effect for this purpose. For purposes of this section, an offense is committed before the effective date of this Act if any element of the offense occurs before the effective date.
How can anyone in Michael Morton’s shoes take advantage of this new discovery rule set? Is this some sort of sick joke?